Court ruling on representation of the state by private lawfirms in civil suits

Katiba Institute & Another v Attorney General & 2 Others, Petition No. 331 of 2016
Ruling dated 2nd November, 2018

Facts
The Petitioners in this case are Katiba Institute and Africa Centre for Open Governance AFRICOG), the Attorney General and the Public Service Commission are the Respondents and Iseme Kamau and Maema Advocates is listed as an interested Party.

The Petitioners filed a Notice of Preliminary Objection together with a Notice of Motion seeking an order to strike out the appointment of the firm of Iseme, Kamau and Maema Advocates by the Attorney General to represent the state in the Petition.

Issue
Whether a private firm has locus standi, under Article 156 (4) (b), (6) and (7) of the Constitution as read with sections 4(2) and 14 (1) of the Office of the Attorney General Act No. 49 of 2012 and sections 38, 43 and 45 of the Interpretation and General Provisions Act, Cap 2 of the Laws of Kenya, to represent the government in civil litigation.

Holding
The Attorney General may procure services of a private law firm to act on behalf of the national government in civil proceedings in which the national government is a party to and that such appointment is not a delegation. The Preliminary Objection was therefore overruled.

Rationale
The Court stated that according to Article 156 (7), the Attorney General (AG) may exercise his powers in person or by subordinate officers- meaning persons employed and working in the Office of the Attorney General. The powers of the AG therefore may be delegated in civil proceedings.
The Court further reiterated that the question is not whether a private firm can discharge the duties of the AG but whether the AG can legally appoint a private firm to represent him in civil proceedings on behalf of the national government. The Court quoted Section 14 of the Office of Attorney-General Act which states that the AG can delegate his powers and functions to the Solicitor General or any state counsel. This the Court stated is in line with Article 156 (7) of the Constitution. Consequently, delegation can only be to public officers.

The Court agreed with the Respondents’ claim, that Iseme, Kamau and Maema is not acting under delegation but appointment and made reference to Section 25 of the Office of the Attorney-General Act which provides that the AG may procure the services of such other persons. In interpreting the meaning of procuring, the Court stated that it means getting or obtaining something, therefore the AG may get other persons other than the Solicitor General or the subordinate staff. He may appoint private counsel.

The Court explained that this is in line with the principle of statutory construction which means words be given the ordinary meaning unless there is ambiguity as well as the principle of holistic interpretation of the statute.
However, the Court emphasized that it must do so in line with the principles of the Constitution under Articles 10 and 227 and the Public Procurement and Asset Disposal Act (PPAD). The procurement must therefore be fair, competitive, transparent and cost- effective.