Lawyers’ windfall as IEBC spends Sh4bn on poll suits

The Independent Electoral and Boundaries Commission (IEBC) spent more than Sh4 billion fighting legal battles from the 2022 General Election, a new report by the Auditor-General office shows, signalling a windfall for lawyers engaged in court suits.

Out of the amount, the IEBC paid Sh2.3 billion in the year ended June 2023, Auditor-General Nancy Gathungu said, leaving Sh1.92 billion in pending bills.

The electoral agency paid Sh502.3 million to 28 law firms that represented it in the presidential election petition in which the Supreme Court ruled in favour of President William Ruto.

“Included in the use of goods and services amount is Sh502,280,000 incurred on the 2022 presidential petition. However, instruction letters to support an expenditure totalling Sh158,960,000 paid to the lead counsel and assistant counsel were not provided for audit review,” said Ms Gathungu.

Read: MPs approve Sh8.8bn more funds for IEBC

The Auditor-General said the Sh502.28 million paid out in the presidential election suit was, however, higher than the budgeted amount by Sh44.64 million.

The audit also reports that the IEBC made another expenditure totalling Sh713.8 million on legal dues, arbitration, and compensation during the 2022/23 financial year, though it failed to provide agreements entered into with the law firms on specific charges.

“Review of documents for legal dues, arbitration, and compensation revealed that the commission paid legal fees amounting to Sh713,814,134 to law firms to represent it. However, engagement terms in the letters of instructions indicated that the fees would be paid as per the advocate’s remuneration order but did not indicate any ceiling.

“Further, the fee notes did not indicate specific charges/rates in reference to the advocates’ remuneration order,” said Ms Gathungu.

In light of the queries on the Sh158.9 million expenditure on the presidential petition and the failure to provide agreement terms between the IEBC and law firms representing it in the cases where it paid Sh713.8 million, said the Auditor-General, “the accuracy and completeness of the legal dues, arbitration, and compensation totalling Sh2,348,660,000 could not be confirmed.”

But while the commission spent Sh2.3 billion on legal expenses during the fiscal year when Kenyans went into the election, the Auditor-General also observed that it also accrued additional legal bills of more than Sh1.9 billion.

This raised the entire legal costs for the IEBC in 2022/23 to Sh4.29 billion.

Since the commission did not pay Sh1.9 billion during the year, this added its pending legal dues to Sh2.9 billion by the end of June 2023, the Auditor-General noted.

“The statement of financial position reflects the trade and other payables balance of Sh4,857,441,000. Whereas the opening balance for the financial year 2022/2023 was Sh2,051,567,000, the commission accrued additional bills amounting to Sh2,805,874,000, which included Sh1,948,379,000 for legal fees during the year under review,” said Ms Gathungu.

“The legal fees payables, therefore, stood at Sh2,909,645,000 while goods and services payables totalled Sh1,947,796,000,” she said.

Read: IEBC lawyers pocket Sh446m fees in poll suits

Ms Gathungu notes in her report that “in the circumstances, the Commission risks legal actions and payment of an avoidable interest on delayed payments.”

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