Lawyers (From top left): Abdikadir Mohammed, Mahat Somane, and Waweru Gatonye. From bottom left): Tom Ojienda, Adrian Kamotho and
Anthony Lubulellah.
Dozens of law firms will get Sh6.2 billion for legal services to the electoral commission and Nairobi county government, according to official documents seen by Nation.Africa.
The Independent Electoral and Boundaries Commission (IEBC) owes 11 law firms at least Sh1 billion in pending bills for various legal services including defending the 2022 presidential election petition.
And a total of 44 law firms have got Sh1.3 billion as legal fees from the Nairobi City County government in the past one year amidst concerns over the rising legal pending bills.
The county government made requisitions to the Office of the Controller of Budget to pay the law firms in separate dates between October 2022 and January 2024 this year.
Documents presented to parliament by the electoral agency Chief Executive Officer Mr Hussein Marjan show that the amount is about 20.4 percent of the Sh4.9 billion owed to the law firms since 2013.
The details come even as Auditor-General Nancy Gathungu flagged the Sh569 million incurred in the 2022 presidential election petition noting that it lacks the requisite documentation in an audit report before parliament.
The audit on the accounts of IEBC for the 2022/23 financial year is currently under consideration by the Public Accounts Committee (PAC) of the National Assembly.
Ms Gathungu specifically notes that IEBC’s expenditure on the presidential election petition was not backed by the requisite certification and that it was in excess of the agreed chargeable amount.
The Auditor-General specifically singled out the Sh158.96 million paid to the commission’s lead counsel and assistant counsel saying it was in excess of Sh44.64 million.
“Instruction letters to support the expenditure were not provided for audit review,” the audit report says adding; “in addition, the expenditure was in excess of the agreed chargeable maximum amount as per the instruction letters signed by the commission and the legal firms.”
The IEBC documents show that Mukele Moni and Company Advocates is owed Sh285.57 million for various legal services procured dating back to 2013, Garane and Somane Advocates Sh161 million, G and A Advocates Sh154.9 million, Lubullelah and Associates Sh115.61 million and Kimani Muhoro and Company Advocates 64.9 million.
The others are Olendo Orare and Samba Advocates Sh50.5 million, Muthee Kihiko Soni and Associates Sh49.42 million, AB Patel and Patel Advocates Sh46 million, Abdullahi Gitari and Odhiambo Advocates Sh31.8 million, Abdikadir and Abdikadir Advocates Sh31.3 million and Gumbo and Associates Sh30.3 million.
The services rendered by the law firms to the commission include representation in election petitions, administration of oaths, drafting of the affidavits at the Bomas of Kenya, public procurement and review board matters and arbitration and compensation among others.
For instance, in the matter involving the 2022 presidential election petition, the audit notes that the electoral agency could not provide the required documentation to the auditors to prove the expenditures of public funds was above board.
The 2022 presidential election petition was filed by Azimio leader Raila Odinga, a presidential candidate in the election, who challenged the election of President William Ruto.
However, the case was dismissed by the seven Supreme Court Justices for want of evidence and directed that the costs be borne by parties in the petition- the petitioners and respondents.
The documents before PAC do not however indicate how much was paid to the law firms that provided consultancy works for the presidential election and certification of presidential election results forms in the 2022 general election.
PAC members- Nabii Nabwera (Lugari) and Dr Edwin Mugo (Mathioya) are apprehensive that the amount owed to lawyers could be exaggerated.
This even as they demanded that the pending bills verification committee be called upon to verify IEBC’s pending legal fees before they are paid.
“If I was the National Treasury Cabinet Secretary and I am told to release the money to pay the lawyers, I will develop a cold feet,” said Mr Nabwera adding; “it is a question of competence or capacity that makes us incur such huge sums in legal fees otherwise what is the justification?”
Dr Mugo noted; “we need the report of the pending bills verification committee before these funds are released to the law firms contracted by the IEBC.”
The audit notes that agreements on fees chargeable by lawyers in the 2022 presidential election petition were not provided to the auditors at the time of the audit.
It also shows that the engagement terms in letters of instructions indicated that the legal fees would be paid as per the Advocates Remuneration Order “but did not indicate any ceiling.”
Further, the audit established that the fee notes did not indicate specific charges or rates in reference to the advocates’ remuneration order.
But Mr Marjan noted that the amount owed to lawyers is in line with the advocate remuneration order, “which gives the base and not ceiling.”
Mr Marjan also defended the awarded monies saying the hiring of the law firms was approved by the Office of the Attorney-General noting that “there is no way our legal team would have handled this.”
“The commission sought an advisory from the Attorney-General and he said that the IEBC cannot engage advocates resident at the State Law Office. The commission formulates its own rules for the hiring of external lawyers,” Mr Marjan told the committee.
Mr Marjan revealed that the commission has only four active in-house counsels headed by Mr Chrispinus Owiye, the director legal affairs and cannot represent the commission in all the matters pending before the court.
Separately, documents seen by Nation.Africa from the Office of the Controller of Budget indicate most of the approved payment was made to law firms involved in litigation at the county executive with only Sh29.1 million being spent on law firms at the county assembly.
The last requisition of Sh160 million and Sh176 million was made on January 30, this year for payment to 11 different law firms.
They include Okatch & Partners (Sh27 million), Sirma & Company (Sh21 million), Murimi Murango & Associates (Sh17 million), Adrian Kamotho (Sh10 million), T.M Kuria & Company (Sh191 million), I.N Nyaribo & Company (Sh40 million), Jamal Bake & Associates Advocates (Sh25 million).
Others include Makallah Theuri (Sh73 million), R.M Aula and Company Advocates (Sh20 million), MMA Advocates (Sh57 million) and Wambugu and Muriuki Advocates (Sh25 million).
In 2023 alone, the county government made requisitions totaling Sh865 million to pay different law firms. They include Nyareru and Associates Advocates (Sh1.2 million), Diro Advocates Llp (Sh1.8 million), Nyareru and Associates Advocates (Sh2 million), Ashioya Mogire and Nkatha Advocates (Sh2.2 million), Nchoe, Jaoko and Company (Sh2.2 million), Makallah Theuri and Company Advocates (Sh2.7 million), Diro Advocates LLP (Sh3.5 million), Ashioya Mogire Nkatha Advocates (Sh4.1 million).
Others law firms include Roba and Associates (Sh14.7 million), Jamal Bake and Associates Advocates (Sh47 million), Swanya and Company Advocates (Sh85 million), Gikunda Miriti and Company (Sh67 million), Okubasu Munene and Kazungu Advocates Llp (Sh30 million), Mugoye and Associates (Sh50 million), J.W Watcher Advocates (57 million), Muchoki and Kangata Njenga and Company (Sh2.8 million), Momanyi and Associates Advocates (Sh34 million), Fountain of life Deliverance Fellowship Centre (Sh21 million), Ongicho and Ongicho Company (Sh2 million), Ojienda and Company Advocates (Sh5 million), Eric Ntabo and Co. (Sh20 million),Njenga Maina and Company Advocates (Sh4.2 million) and Evans Thiga Gaturu Advocates (Sh0.7 million), Musa Boaz & Thomas Advocates (Sh3.5 million) and Tariq Khan and Associates (Sh7 million).
The requisition for legal services to the county assembly include Makallah Theuri and Company Advocate (Sh1.8 million), Musyoka Mogaka and Company Advocate (Sh2 million), Makallah Theuri and Company Advocates (Sh2.4 million), Osundwa and Company (Sh5.7 million), Brayan Khaemba, Kamau and Company Advocates (Sh2 million), Ashioya Mogire & Nkatha Advocates (Sh2.4 million), Osundwa and Okatch and Partners (Sh3 million), Maina and Macharia Advocates (Sh3.5 million).
Other law firms included in the requisition include Mugoye and Associates (Sh50 million), Roba & Associates (Sh14.7 million), Jamal Bake & Associates Advocates (Sh25 million), Roba and Associates (Sh51 million). Kwanga Mboya and Company Advocates (Sh125 million), Abdullah Mohammed Rasoul Ali Alharmood Advocates and Legal Consultants (Sh12.7 million), Andrew Onguka and Ombwayo and Co Advocates (Sh7 million), Waweru Gatonye and Co. Advocates (Sh15 million), Prof Ojienda and Advocates, Mugoye Associates and Proland Ltd (Sh34 million) and Prof Tom Ojienda (Sh15.3 million), Chesikwa and Kiprop Advocates (Sh52 million).
The requisition requests come on the backdrop of concerns by the Auditor General Nancy Gathungu over the huge pending legal bills at City Hall with a few of the advocates owed billions by the county government following litigations.
“Analysis of the revenue against the legal fees revealed that 11 advocates out of a legal list of 832 cases, equivalent to 10 percent are owed a total of Kshs.10 billion which is more than the total County own source revenue collected amount of Sh10.5 billion,” read the auditor general’s report.
Nairobi City County government has the largest amount of pending bills approximated to be over Sh100 billion, according to the Controller of Budget report. Legal pending bills form a huge part of the pending bills at Sh21 billion.
The amount also represents almost half of the total legal pending bills owed by 47 counties that stand at Sh50 billion according to the Auditor General.
The payment also comes amidst concerns over the lack of payment to a huge number of suppliers who provided services to the county government for the past two financial years. A section of the suppliers who have been camping at City Hall accused the county government of biasness in the payments.
While appearing before the Senate Finance Committee in July, Mr Sakaja revealed that politicians including MPs and senators have interest in some of the law firms and companies owed millions of shillings.
"I am not the registrar of businesses so l do not know the beneficial owners but I will tell you that senators and MPs push for certain businesses to be paid, contractors to be paid, lawyers to be paid... I will not mention names because that is not why I am here. [But] there is always that pressure. You pretend that you are oversighting, yet you have an interest that is a business interest, but you want to look like an angel. We must be honest with each other; we must be honest as a country." Mr Sakaja told the senators.
Last week, the county boss said an internal audit committee is expected to verify all the legal pending bills. This is after a previous committee created after he assumed office ended up in disarray due to differences on the law firms to be paid.
Mr Sakaja also announced the hiring of a total of 46 lawyers in addition to the existing 26 lawyers as a way of reducing the legal pending bills. The lawyers will be representing the county.
