Taxpayers could be losing billions of shillings in the courts due to legal blunders made by the office of the Attorney-General (AG) while defending the State against compensation claims lodged by individuals and corporations.
A perusal of civil cases that the state has lost reveals mistakes that the AG has committed in the courts — including failure to produce crucial defence witnesses and documents — shows hundreds of millions of shillings awarded to claimants without much of a hassle.
These kinds of omission leave huge gaps in its defence, with the courts often entering judgments in favour of the claimants.
The government’s principal legal adviser has occasionally failed to enter appearance in cases, delayed in filing appeals when a judgment has been issued and subsequently failed to explain what occasioned the inordinate delays.
The latest beneficiary of the AG’s failures is Nairobi reclusive tycoon Mike Maina Kamau, who last week secured orders compelling the state to pay him Sh859 million as compensation for his demolished mansion in Nairobi’s Spring Valley to pave the way for a road.
Justice John Mativo of the Judicial Review Division directed the Principal Secretary in the Ministry of Transport and Infrastructure as well as the Attorney-General to ensure that the billionaire, who owns Marble Arch Hotel in Nairobi, is paid.
The AG had opposed the compensation claim, but failed to prove that the property was on a road reserve and that Mr Maina held an irregular title deed.
The state also raised fraud allegations against Mr Maina but failed to prove the claims through the Commissioner of Lands or any witness from the Lands office (Ministry of Lands) on how the plaintiff fraudulently acquired the certificate of title he held.
The state said it intended to appeal the award, but this was to expose yet another weakness within the Attorney General’s office. While the compensation order was made in December 2017, the state filed the appeal on November 14, 2019, out of the requisite timelines and without court’s extension.
At the time when the award was made, the sum Mr Maina had been awarded was Sh711 million, then it gained interest after the delayed settlement and remittance by the AG’s office.
Mr Maina said that he was aware that following the judgment, the State Department for Infrastructure allocated the funds for settlement of the decretal sum and costs.
He submitted that the Department even remitted part of the money to the office of Attorney General for onward transmission, but the money was not paid for close to two years without sufficient cause and without any order for stay.
According to Article 156 (4(b) of the Constitution, the AG should represent the national government in court or in any other legal proceedings to which the national government is a party, other than criminal proceedings. But the laxity to appear, enter appearance of defence and file defence documents in court has enabled some litigants to obtain compensation without much struggle.
For instance, a family in Nyandarua was awarded Sh7 million in an undefended land dispute against Silibwet Primary School. The evidence in court shows that the office of AG failed to defend the public school in the case filed against it by John Macharia Mwangi, whose 11 acres were compulsorily acquired by government 53 years ago.
Attempts by the AG to enter appearance into the case when the judgment had already been delivered were thwarted by Justice Mary Oundo at the Environment and Lands Court in Nyahururu.
The AG wanted the judgment to be set aside, but Justice Oundo noted that at the Attorney General was duly served with the suit papers, and a hearing notice on many occasions and no explanation was given as to why there was no appearance during hearings and mentions of the matter.
The judge ruled that the office of the AG deliberately failed to attend the hearing and prosecute the case and thereby refused to avail itself of the court process. Further that no evidence was placed on the record even by way of witness statements or documents.
While describing the AG’s application as an afterthought, a waste of judicial time and abuse of the court process, Justice Oundo found that the State Law Office had just crafted the reasons for seeking quashing of the judgment, but left out the issue of its failure to attend court during the hearing of the suit.
According to former DPP Philip Murgor, the office of Attorney General is facing myriad of challenges among them laxity by State Counsels leading to a collapse of cases filed against the government.
Another lawyer, Mr Suyianka Lempaa says Mr Kariuki can also motivate the advocates in his chambers by approaching the Salaries and Remuneration Commission (SRC) and bargain for better wages for the counsels.
But Mr Murgor said terms of those in office have improved, unlike before.
“When I joined the AG’s Office in 1986, the terms were abysmal and we earned about Sh5,000 at entry level with no medical cover. Today, the counsel at the AG’s have little to complain about and should provide the best possible representation to the public,” he said.
He observes that if the State counsels are falling short of the public’s expectation, it is a challenge to Attorney General Kihara Kariuki — as the principal legal adviser to the government- to look into ways of motivating his staff.
“One way of motivating the counsel is for AG Kihara Kariuki to make appearances in court to lead in cases of great public interest. Past Attorneys General have done this, and it has had a tremendous motivational effect,” he added.
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