Office of the Attorney-General Act

Section 1. Short title Section This Act may be cited as the Office of the Attorney-General Act.

Section 2. Interpretation Section In this Act, unless the context otherwise requires— "Advisory Board" means the Advisory Board established under section 20A(1); "Attorney-General" means the Attorney-General appointed under Article 156 of the Constitution; "College of Arms" means the College of Arms established by section 3 of the College of Arms Act ( Cap. 98 ); "Council of Legal Education" means the Council of Legal Education established by section 4 of the Legal Education Act ( Cap. 16B ); "Deputy Solicitor-General" means a Deputy Solicitor-General appointed under section 13 ; "Disciplinary Tribunal" means the Disciplinary Tribunal established under section 57 of the Advocates Act ( Cap. 16 ); "Office" means the Office of the Attorney-General; "public seal" means the seal referred to in Article 9 of the Constitution; "Solicitor-General" means the Solicitor-General appointed under section 9 ; "State Counsel" means a person appointed as such under section 21 and includes the Solicitor-General and Deputy Solicitor-General; and "subordinate officer" means a State Counsel or any other member of staff employed under this Act and discharging his or her duties in the Office. [Act No. 3...

Section 3. Application Section This Act shall apply to the Attorney-General, the Solicitor-General and subordinate officers who perform or discharge legal functions and such other duties as may be assigned to them in the Office of the Attorney-General.

Section 4. Administration of the Office Section 4(1) The administration of the Office, the discharge of duties, the exercise of the powers and the relationship of the Office with other officers discharging legal duties in the public service shall be governed by this Act. Section 4(2) The Attorney-General shall discharge the constitutional mandate of the Office specified under Article 156 of the Constitution either in person or through a subordinate officer to whom the function is delegated.

Section 5. Functions of the Attorney-General Section 5(1)(a) advising Government Ministries, Departments, Constitutional Commissions and State Corporations on legislative and other legal matters; Section 5(1)(b) advising the Government on all matters relating to the Constitution, international law, human rights, consumer protection and legal aid; Section 5(1)(c) negotiating, drafting, vetting and interpreting local and international documents, agreements and treaties for and on behalf of the Government and its agencies; Section 5(1)(d) coordinating reporting obligations to international human rights treaty bodies to which Kenya is a member or on any matter which member States are required to report; Section 5(1)(e) drafting legislative proposals for the Government and advising the Government and its agencies on legislative and other legal matters; Section 5(1)(f) reviewing and overseeing legal matters pertaining to the registration of companies, partnerships, business names, societies, adoptions, marriages, charities, chattels, hire purchase and coat of arms; Section 5(1)(g) reviewing and overseeing legal matters pertaining to the administration of estates and trusts; Section 5(1)(...

Section 6. Powers of the Attorney-General Section 6(1) The Attorney-General shall, by virtue of his office, be the titular head of the bar and shall take precedence in court in all matters whenever he appears in accordance with the Advocates Act ( Cap. 16 ). Section 6(2)(a) with leave of the court or tribunal, appear at any stage of proceedings, appeal, execution or any incidental proceedings before any court or tribunal; Section 6(2)(b) require any officer in the public service to furnish any information in relation to any matter which is the subject of legal inquiry; Section 6(2)(c) summon any officer in the public service to explain any matter which is the subject of litigation by or against the Government; and Section 6(2)(d) issue directions to any officer performing legal services functions in any Government Ministry. Section 6(3)(a) establish such directorates, divisions, sections or units in the Office as may be necessary; Section 6(3)(b) establish such county or regional offices as may be necessary; Section 6(3)(c) supervise the formulation of policies and plans of the Office; and Section 6(3)(d) perform any other action necessary in the administrative interests of the Off...

Section 7. Audience by Attorney-General in matters of public interest, etc. Section 7(1)(a) to be of public interest or involves public property; or Section 7(1)(b) to involve the legislature, the judiciary or an independent department or agency of the Government. Section 7(2)(a) notify any court, tribunal or any other administrative body of the intention to be enjoined to the suit, inquiry or administrative proceedings; and Section 7(2)(b) satisfy the court, tribunal or any 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. Section 7(3) Where a suit, inquiry or any other proceedings is pending before a court, tribunal or any other administrative body to which the Attorney-General does not have a right of audience, it shall be sufficient for the Attorney-General to file a certificate of the intention of the Attorney-General to be joined in the proceeding. Section 7(4) The court, tribunal or any such administrative body shall, upon...

Section 8. Protection from personal liability Section 8(1) No criminal proceeding or civil suit shall be brought against the Attorney-General, the Solicitor-General or a subordinate officer in respect of any proceeding in a court of law or in the course of discharging of the functions of the Attorney-General under the Constitution and this Act. Section 8(2) No matter or thing done by the Attorney-General, the Solicitor-General or a subordinate office shall, if the matter or thing is done in good faith for executing the functions, powers or duties of the Commission, render the Attorney-General, Solicitor-General or other subordinate officer personally liable to any action, claim or demand whatsoever.

Section 9. The Solicitor-General Section 9(1) There shall be a Solicitor-General who shall be appointed by the President with the approval of the National Assembly. Section 9(2) The President shall nominate a person for appointment as a Solicitor-General from among persons recommended by the Public Service Commission. Section 9(3)(a) is qualified to hold the office of judge of a superior court under the Constitution; and Section 9(3)(b) meets the requirements of Chapter Six of the Constitution. Section 9(4) The Solicitor-General shall assist the Attorney-General in the performance of the duties of the Attorney-General. Section 9(5)(a) organise, co-ordinate and manage the administrative and the legal functions of the Office; Section 9(5)(b) assist the Attorney-General in the performance of his duties as the principal legal advisor to the Government; Section 9(5)(c) conduct, or assign and supervise all court cases, including appeals or petitions on behalf of the Attorney-General; and Section 9(5)(d) subject to section 20B, be responsible for the discipline of State Counsel and other members of staff of the Office. Section 9(6)(a) organizing and coordinating the administrative and leg...

Section 10. Private practice prohibited Section The Attorney-General, the Solicitor-General and State Counsel shall not engage in any other gainful employment.

Section 11. Resignation Section The Attorney-General or the Solicitor-General may resign from office in writing, addressed to the President.

Section 12. Removal from office Section 12(1)(a) serious violation of the Constitution or any other law; Section 12(1)(b) gross misconduct, whether in the performance of their functions or otherwise; Section 12(1)(c) physical or mental incapacity to perform the functions of office; Section 12(1)(d) incompetence; or Section 12(1)(e) bankruptcy. Section 12(2) Notwithstanding the provisions of subsection (1), the President may, upon election under the Constitution, appoint a person who is qualified as Attorney-General in accordance with the provisions of the Constitution and this Act.

Section 13. Deputy Solicitors-General Section The Attorney-General may, in consultation with, the Advisory Board, appoint such Deputy Solicitors-General as the Attorney-General may consider necessary for the proper and efficient discharge of the functions of the Office. [Act No. 3 of 2024, Sch.]

Section 14. Delegation by Attorney-General Section 14(1) The Attorney-General may, either generally or otherwise as provided by the instrument of delegation, by writing under his hand delegate to the Solicitor-General or any State Counsel all or any of his powers and functions under any written law, except this power of delegation. Section 14(2) A power or function delegated under this section may be exercised or performed by the Solicitor-General or State Counsel in accordance with the instrument of delegation. Section 14(3) A delegation under this section may be revoked at will and does not prevent the exercise of a power or performance of a function by the Attorney-General.

Section 15. Legal officers in Government Ministries, departments Section 15(1) All State Counsel in any Government Ministry or Department shall be officers of the Attorney-General and shall be answerable to the Attorney-General. Section 15(2) The Attorney-General shall have the power to issue directions to any State Counsel with regard to the manner of performing the legal functions within their respective Ministries or Departments.

Section 16. Reserve of matters to the Attorney-General Section interpretation of the Constitution;

Section 17. Engagement of consultant Section 17(1) No Ministry or Department shall engage the services of a consultant to render any legal services relating to the functions of the Attorney-General without the approval of the Attorney-General. Section 17(2)(a) direct a State Counsel to participate in the work of the consultant; and Section 17(2)(b) prescribe the terms and conditions for a State Counsel who participates in such consultancy.

Section 18. Power to issue directives and practice notes Section 18(1) The Attorney-General shall exercise powers, issue directives or practice notes to any officer to whom this Act applies for the purpose of maintaining standards and uniformity. Section 18(2) The directives or practice notes issued pursuant to subsection (1) shall be in such form and manner as the Attorney-General may determine.

Section 19. Reference of matter for opinion of the Attorney-General Section All Government Ministries, Departments and State Corporations shall seek the opinion of the Attorney-General on any matter raising substantial legal or constitutional issues.

Section 20. Ministries to notify the Attorney-General Section All Government Ministries and Departments shall notify the Attorney-General of all material litigation within three days upon the filing of any pleadings.

Section 20A. Advisory Board Section 20A(1) There is established a board to be known as the Advisory Board to the Office of the Attorney-General. Section 20A(2)(a) the Attorney-General, Section 20A(2)(b) the Principal Secretary responsible for matters relating to the public service, Section 20A(2)(c) the Principal Secretary responsible for matters relating to the National Treasury, Section 20A(2)(d) the Chairperson of the Public Commission or a representative designated in writing by the Chairperson, Section 20A(2)(e) the Chairperson of the Council of the Institute of Human Resource Management established under the Human Resource Management Professionals Act (Cap. 538) or a representative designated in writing by the Chairperson, and Section 20A(2)(f) the President of the Law Society of Kenya or a representative designated in writing by the President. Section 20A(3) The Attorney-General shall be the chairperson of the Advisory Board. Section 20A(4) The Solicitor-General shall be the secretary to the Advisory Board. [Act No. 3 of 2024 , Sch.]

Section 20B. Functions of the Advisory Board Section recruitment and appointment of Deputy Solicitors-General, State Counsel and other members of staff of the Office,

Section 20C. Remuneration of the Advisory Board Section The members of the Advisory Board shall be paid such allowances as the Attorney-General shall approve upon the advice of the Salaries and Remuneration Commission. [Act No. 3 of 2024 , Sch.]

Section 20D. Meetings and quorum Section 20D(1) The Advisory Board shall meet at least four times in every financial year and not more than three months shall elapse between one meeting and the next meeting. Section 20D(2) Unless four members of the Advisory Board otherwise agree, at least fourteen days’ notice of a meeting shall be given to every member. Section 20D(3) The quorum at a meeting of the Advisory Board shall be four members. Section 20D(4) The chairperson of the Advisory Board shall convene and preside over the meetings of the Advisory Board or in the absence of the chairperson, a member of the Advisory Board elected by the members present from among their number. Section 20D(5) The proceedings of the Advisory Board shall not be invalidated by reason of a vacancy or absence among the members. Section 20D(6) A member of the Advisory Board or a person present at a meeting of the Advisory Board who has interest in a matter for consideration by the Advisory Board or by the Office shall disclose in writing the nature of that interest and is disqualified from participating in the deliberations of the Advisory Board or the Office in respect of that matter, unless the Advisory...

Section 21. State Counsel Section 21(1) The Attorney-General may, in consultation with, and on the recommendation of the Advisory Board appoint such number of State Counsel as may be necessary for the proper and efficient discharge of the functions of the Office. Section 21(2)(a) is an Advocate of the High Court of Kenya; and Section 21(2)(b) is a fit and proper person with due regard to the discharge of his or her duties under this Act. Section 21(3) The Attorney-General shall comply with the values and principles under the Constitution in the appointment of State Counsel. Section 21(4) The Attorney-General shall cause to be published in the Gazette, the names of all persons appointed as a State Counsel under subsection (1). Section 21(5) The Attorney-General may deploy a State Counsel appointed under subsection (1) to any Ministry. Section 21(6) The State Counsel appointed under subsection (1) shall perform such functions as may be assigned by the Attorney-General. Section 21(7) A person shall not act as a State Counsel unless that person has been appointed as such under subsection (1). Section 21(8) For the avoidance of doubt, nothing in this Act shall entitle any officer who is...

Section 22. Terms and conditions of service Section The State Counsel appointed under this Act shall serve on such terms as the Attorney-General may, on the advice of the Salaries and Remuneration Commission and Advisory Board, determine. [Act No. 3 of 2024 , Sch.]

Section 23. Secondment Section 23(1) The Office may, upon request, second any State Counsel to any agency, organization or institution on such terms and conditions as the Office may, in consultation with the agency to which the person is being seconded, agree upon. Section 23(2) A State Counsel who is seconded under subsection (1) shall be deemed to be an employee of the agency, organization or institution, shall enjoy the same benefits and shall be required to comply with such orders and directions of the agency, organization or institution in the same manner as an employee who is directly recruited by that agency, organization or institution.

Section 24. Code of conduct Section 24(1) A State Counsel appointed under section 21 (1) shall subscribe to and observe the Code of Conduct set out in the Schedule. Section 24(2) The Attorney-General may from time to time amend the Schedule. Section 24(3) A State Counsel who breaches the Code of Ethics shall be liable to disciplinary action.

Section 25. Other staff Section 25(1) There shall be such officers and other members of staff of the Office as the Attorney-General considers necessary for the proper and efficient discharge of the functions of the Office. Section 25(2) The Attorney-General may procure the services of such other persons as may be reasonably necessary for the purposes of assisting the Attorney-General in the performance of the functions of the Attorney-General. Section 25(3)(a) regional and ethnic diversity of the people of Kenya; and Section 25(3)(b) gender equity. Section 25(4) The Attorney-General shall ensure that in the appointment of staff, person with disabilities are taken into account.

Section 26. Prohibition of unauthorized disclosure of information Section 26(1) Without prejudice to the provisions of any other written law, an officer or member of staff of the Office shall not disclose or use any information gained by the officer or member of staff otherwise than in the course of the official duties of the officer or member of staff or with the authority of the Attorney-General. Section 26(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

Section 27. Depository of laws and agreements Section The Office shall be the depository of all laws and local and international documents, agreements and treaties signed for or on behalf of the Government.

Section 28. The public seal Section The Attorney-General shall have custody of the public seal of the Republic of Kenya.

Section 29. Accessibility Section The Attorney-General is entitled to have access to persons, relevant records, documents and property pertaining to a civil or criminal case, in the performance of the duties of the Attorney-General.

Section 30. Facilities Section The Government shall provide adequate facilities for the efficient functioning of the Office.

Section 31. Annual report Section 31(1) The Attorney-General shall, as soon as practicable after thirtieth June in each year, prepare and furnish to the President a report of the operations of the office during the year that ended on thirtieth June. Section 31(2)(a) the financial statements of the Office; Section 31(2)(b) a description of the activities of the Office; and Section 31(2)(c) such other information relating to its functions that the Office may consider necessary. Section 31(3) The Attorney-General shall cause a copy of the report furnished under subsection (1) to be laid before each House of Parliament within fifteen days after the day on which the President receives the report.

Section 32. Regulations Section The Attorney-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted to be prescribed, or necessary or convenient to be prescribed or carrying out or giving effect to this Act.

Section 33. Savings Section A person who immediately before the coming into force of this Act was the Solicitor- General, a Deputy Solicitor-General, a State Counsel or a member of staff of the Office shall continue to be a Solicitor-General, a Deputy Solicitor-General, a State Counsel or a member of staff of the Office as if that person has been appointed under this Act.

Section 28A. Seal of the Office Section 28A(1) There shall be a seal of the Office which shall be such device as the Attorney-General shall determine. Section 28A(2) The seal of the Office shall be kept in the custody of the Attorney-General or such person as the Attorney-General may authorise in that regard. Section 28A(3) The seal of the Office shall be used in accordance with the orders of the Attorney-General. Section 28A(4) The seal of the Office, when affixed to a document and duly authenticated, shall be judicially and officially noticed and, unless the contrary is proved, any necessary order or authorization of the Attorney-General in respect of the seal under this section shall be presumed to have been duly given. [Act No. 3 of 2024 , Sch.]

Section 33A. Further saving Section on the commencement of this section, be deemed to have been employed and deployed in accordance with this Act,