Powers and Functions of the County Attorney in Kenya

The Office of the County Attorney Act establishes the Office of the County Attorney in each county, which is an office in the county public service.

The Office of the County Attorney shall consist of –

• the County Attorney;
• the County Solicitor; and
• such other number of County Legal Counsel as the County Attorney may consider necessary in consultation with the County Public Service Board.

The County Governor shall appoint the County Attorney with the approval of the County Assembly.

A person qualifies for appointment as County Attorney if such person –

• is an Advocate of the High Court of Kenya of at least five years standing; and
• meets the requirements of Chapter Six of the Constitution (on leadership and integrity).

The County Attorney shall hold office for a term of six years.

The County Attorney shall have the status and rank of a member of the county executive committee.

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Functions of the County Attorney

Section 7 of the Office of the County Attorney Act states the functions of the County Attorney in Kenya. The County Attorney–

• is the principal legal adviser to the county government;
• shall attend the meetings of the county executive committee as an ex-officio member of the executive committee;
• shall, on the instructions of the county government, represent the county executive in court or in any other legal proceedings to which the county executive is a party, other than criminal proceedings;
• shall advise departments in the county executive on legislative and other legal matters;
• shall negotiate, draft, vet and interpret documents and agreements for and on behalf of the county executive and its agencies;
• shall be responsible for the revision of county laws;
• may liaise with the Office of the Attorney General when the need arises; and
• shall perform any other, function as may be necessary for the effective discharge of the duties and the exercise of the powers of the County Attorney.

Powers of the County Attorney

The County Attorney shall, in discharging the functions under the Office of the County Attorney Act, have the power to –

• appear at any stage of any proceedings, appeal, execution or any incidental proceedings before any court or tribunal in which by law the County Attorney’s right of audience is not excluded;
• require any officer in the county public service to furnish any information concerning any matter which is the subject of a legal inquiry;
• summon any officer in the county public service to explain any matter which is the subject of litigation by or against the county executive; and
• issue directions to any officer performing legal functions in any department within the county executive.

The County Attorney shall–

• establish, in consultation with the County Public Service Board, such administrative units in the Office as may be necessary for the effective discharge of the functions of the Office under the Office of the County Attorney Act; and
• perform any other action necessary in the administrative interests of the Office.

Removal of the County Attorney from office

The County Attorney may resign from office in writing, addressed to the Governor.

The County Governor may, with the approval of the County Assembly, remove the County Attorney from office only for–

• serious violation of the Constitution or any other law;
• gross misconduct, whether in the performance of functions of the Office of the County Attorney or otherwise;
• physical or mental incapacity to perform the functions of the Office;
• incompetence; or
• bankruptcy

Audience by County Attorney in matters of public interest

Despite the provisions of any other written law, the County Attorney shall have the right of audience in proceedings of any suit or inquiry of an administrative body which the County Attorney considers to:

• be of public interest within the county;
• involve public property within the county; or
• involve an independent department or agency of the county executive.

In the exercise of the powers of the County Attorney mentioned above, the County Attorney shall:

• notify any court, tribunal or such other administrative body of the intention to be enjoined in the suit, inquiry or administrative proceedings;
• satisfy the court, tribunal or such other administrative body of the public interest or public property involved; and
• comply with any direction of the court, tribunal or any such other administrative body on the nature of pleadings or measures to be taken for purposes of giving effect to the effective discharge of the duties of the Office.

Where a suit, inquiry or any other proceeding is pending before a court, tribunal or any other administrative body to which the County Attorney does not have a right of audience, it shall be sufficient for the County Attorney to file a certificate of the intention of the County Attorney to be joined in the proceeding.

The court, tribunal or such other administrative body may, upon receipt of the certificate filed by the County Attorney, enjoin the County Attorney in the proceedings.

No criminal proceeding or civil suit shall be brought against the County Attorney, the County Solicitor, County Legal Counsel or any other officer in the Office of the County Attorney concerning any proceedings in a court of law or in the course of discharging of the functions of the County Attorney in Kenya under the Office of the County Attorney Act.

The County Solicitor

Section 17 of the Office of the County Attorney Act establishes the position of the County Solicitor. The County Public Service Board shall recruit and appoint the County Solicitor competitively.

The County Solicitor shall be the principal assistant of the County Attorney in the execution of the functions of the County Attorney in Kenya.

For more about the Office of the County Attorney in Kenya, see the Office of the County Attorney Act.