Court awards against State more than double to Sh44bn

Attorney General Dorcas Oduor addressing journalists at the Attorney General’s Chambers in Nairobi on September 5, 2024.

Photo credit: File | Nation Media Group

The value of lawsuits awarded against the government rose 2.4 times to Sh43.8 billion in the financial year ended June 2024, highlighting the cost of poor governance and rampant disregard for the rule of law in public institutions to the taxpayer.

The figure was a rise from Sh18.47 billion awarded against the government in the previous financial year, as the number of civil suits filed against public institutions increased by 44.9 percent to 6,063 from 4,185, according to the Public Service Commission (PSC) data.

The PSC says in the latest report on the status of compliance of Kenya’s public service institutions with the constitutional values and principles that the amount was from 559 monetary cases judged against 213 State institutions.

According to the PSC, the flurry of lawsuits and the losses in court are an indicator of poor governance practices and failure to uphold the rule of law.

The government institutions lost 769 other cases where judgments were declaratory orders as opposed to monetary payments, which could be much higher in the current financial year given that there were 4,590 pending judgments as at the end of June last year.

According to the report, the leading causes of litigation were challenging administrative actions (2,146 cases, followed by land disputes (1,015) and employment and labour-related cases (770), human rights violations (596) and breach of contracts (434).

The Sh43.8 billion lawsuit bill marks the third straight year of rising awards against the government, given that the figure was Sh12.61 billion in 2021/2022.

In the year ended June 2024, some Sh22.38 billion in awards was against State corporations and semi-autonomous government agencies, ministries and state departments (Sh21.31 billion), constitutional commissions and independent offices (Sh1.25 billion) and Sh113 million from public universities.

The PSC has linked this trend to disregard for the law, coming in the year monetary judgment in favour of government institutions dropped by 63 percent to Sh3.76 billion from Sh10.26 billion—an indictment on the government’s legal defence.

Now the PSC has recommended the office of the Attorney-General compile an inventory of all suits filed against public institutions in the past three years and establish the awards against public institutions and reasons for the loss of cases. This is to be done by the end of June this year.

The PSC further wants the office of the Attorney-General to undertake reforms in the management of civil litigations and develop a risk mitigation plan to insulate the government and by extension the public who underwrite the cost of awards through taxes.

“It is also recommended that public officers who make decisions that lead to civil litigations be held personally liable for any awards that may accrue against the institutions where the decision was made,” added the PSC.

The government has come under scrutiny for disregarding public participation when rolling out various policies. This is against the provisions of the 2010 constitution, the Public Service (Values and Principles) Act, 2015 and the Public Service Commission Framework for Implementation of Values and Principles in the Public Service, 2015.

The three laws require State institutions to engage the public on the contents of any proposed policy by granting adequate opportunity for people to review and make comments, be heard by the makers of the policy and be notified of the final policy and whether their views were incorporated.

The PSC notes that less than one-third (22.8 percent) of public institutions subjected policies to public participation while half of those which undertook public participation on their policies did not give reasonable time to their stakeholders to familiarise themselves with the draft.

The disregard for public opinion, added to other challenges such as corruption, saw the government’s overall compliance index—the aggregate score for adhering to constitutional values and principles—fall for the second year running to 42.7 percent in the year ended June 2024 from 43.8 percent in the previous year. The peak was 46 percent in the financial year 2022/23.

Drops were seen in several key thematic areas that are used to compute the overall compliance index. A big drop was seen in public participation in the policymaking process where the score dipped to 19.5 percent from 33.3 percent.

“All 20 parameters evaluated performed poorly and were rated ‘low.’ This implies that the desired transformation of Kenyan society is yet to be realised, going by the performance ratings against the evaluation indicators,” said the PSC.

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Note: The results are not exact but very close to the actual.