Office of the County Attorney Act

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

Section 2. Interpretation Section In this Act— "Attorney-General" means the Attorney-General appointed under Article 156 of the Constitution; "County Attorney" means the County Attorney appointed under section 5 ; "County Legal Counsel" means a person appointed as such under section 18 ; "County Solicitor" means a person appointed as such under section 17 ; and "Office" means the office of the County Attorney established under section 4 .

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

Section 4. Establishment of Office of County Attorney Section 4(1) There is established in each county the Office of the County Attorney, which is an office in the county public service. Section 4(2)(a) the County Attorney; Section 4(2)(b) the County Solicitor; and Section 4(2)(c) such other number of County Legal Counsel as the County Attorney may, in consultation with the county public service board, consider necessary.

Section 5. Appointment and qualifications for appointment of County Attorney Section 5(1) The County Attorney shall be appointed by the Governor with the approval of the county assembly. Section 5(2)(a) is an Advocate of the High Court of Kenya of at least five years standing; and Section 5(2)(b) meets the requirements of Chapter Six of the Constitution. Section 5(3) The County Attorney shall take and subscribe to the oath or affirmation as set out in the First Schedule to this Act before assuming office.

Section 6. Tenure of office Section 6(1) The County Attorney shall hold office for a term of six years. Section 6(2) The County Attorney shall have the status and rank of a member of the county executive committee.

Section 7. Functions of the County Attorney Section is the principal legal adviser to the county government;

Section 8. Powers of the County Attorney Section 8(1)(a) 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; Section 8(1)(b) require any officer in the county public service to furnish any information in relation to any matter which is the subject of a legal inquiry; Section 8(1)(c) 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 Section 8(1)(d) issue directions to any officer performing legal functions in any department within the county executive. Section 8(2)(a) 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 this Act; and Section 8(2)(b) perform any other action necessary in the administrative interests of the Office.

Section 9. Audience by County Attorney in matters of public interest Section 9(1)(a) be of public interest within the county; Section 9(1)(b) involve public property within the county; or Section 9(1)(c) involve an independent department or agency of the county executive. Section 9(2)(a) notify any court, tribunal or such other administrative body of the intention to be enjoined in the suit, inquiry or administrative proceedings; Section 9(2)(b) satisfy the court, tribunal or such other administrative body of the public interest or public property involved; and Section 9(2)(c) 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 9(3) 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. Section 9(4) The court, tribunal or such other administrati...

Section 10. Protection from personal liability Section 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 in respect of any proceedings in a court of law or in the course of discharging of the functions of the County Attorney under this Act.

Section 11. Private practice prohibited Section The County Attorney, the County Solicitor and County Legal Counsel shall not engage in any other gainful employment that may result in a conflict of interest.

Section 12. Resignation Section The County Attorney may resign from office in writing, addressed to the Governor.

Section 13. Removal from office Section serious violation of the Constitution or any other law;

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

Section 15. Legal officers in county executive departments Section 15(1) All County Legal Counsel in any department in the county executive shall be officers of the Office and shall be answerable to the County Attorney. Section 15(2) The County Attorney shall have the power to issue directions to any County Legal Counsel with regard to the manner of performing the legal functions within their respective departments.

Section 16. Engagement of consultant Section 16(1) A department or public entity established within a county executive shall not engage the services of a consultant to render any legal services relating to the functions of the County Attorney without the approval of the County Executive Committee. Section 16(2) A request by a department or public entity to the county executive committee to engage the services of a consultant for the provision of legal services, shall be in writing. Section 16(3) An approval by the county executive committee of a request under subsection (2) shall be in writing.

Section 17. County Solicitor Section 17(1) There shall be a County Solicitor who shall be competitively recruited and appointed by the county public service board. Section 17(2)(a) has at least five years' experience as an Advocate of the High Court of Kenya; and Section 17(2)(b) meets the requirements of Chapter Six of the Constitution. Section 17(3) The County Solicitor shall be the principal assistant of the County Attorney in the execution of the functions of the County Attorney under this Act and any other written law.

Section 18. County Legal Counsel Section 18(1) The county public service board shall, in consultation with the County Attorney, appoint such County Legal Counsel as may be necessary for the proper and efficient discharge of the functions of the Office. Section 18(2)(a) is an Advocate of the High Court of Kenya; Section 18(2)(b) meets the requirements of Chapter Six of the Constitution; and Section 18(2)(c) meets such other qualifications as the county public service board may require. Section 18(3) Despite subsection (2), nothing in this Act shall be construed to entitle any officer who is not qualified in law to perform legal functions in the county public service.

Section 19. Terms and conditions of service Section The County Attorney, County Solicitor and County Legal Counsel appointed under this Act shall serve on such terms as the county public service board shall, in consultation with the Salaries and Remuneration Commission, determine.

Section 20. Code of conduct Section 20(1) A County Attorney, County Solicitor and County Legal Counsel appointed under section 18 shall subscribe to and observe the Code of Conduct as set out in the Second Schedule. Section 20(2) The Attorney-General may, from time to time by notice in the Gazette , amend the Second Schedule. Section 20(3) A County Legal Counsel who breaches the Code of Ethics shall be liable to disciplinary action.

Section 21. Secondment Section 21(1) The Office may, upon request, second any County Legal Counsel to any agency, organization or institution within the county government on such terms and conditions as the Office, in consultation with the agency to which the person is being seconded, agree upon. Section 21(2)(a) be deemed to be an employee of the agency, organization or institution; Section 21(2)(b) enjoy the same benefits as an employee who is directly recruited by the agency, organization or institution; and Section 21(2)(c) 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 22. Staff Section 22(1) There shall be such officers and other members of staff of the Office as the County Attorney, in consultation with the county public service board, considers necessary for the proper and efficient discharge of the functions of the Office. Section 22(2) The County Attorney may procure the services of such other persons as may be reasonably necessary for the purposes of assisting the County Attorney in the performance of the functions of the County Attorney. Section 22(3) The appointing bodies shall ensure that the composition of the staff of the Office reflects gender equity and takes into account persons with disabilities.

Section 23. Prohibition of unauthorized disclosure of information Section 23(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 in the course of the official duties of the officer or member of staff without the authority of the County Attorney. Section 23(2) A person who contravenes subsection (1) commits an offence and is liable, on conviction, to a fine not exceeding two hundred thousand shillings, or to imprisonment for a term not exceeding two years, or to both.

Section 24. Depository of laws and agreements Section The Office shall be the depository of all County laws and legal documents and agreements signed for or on behalf of the county executive.

Section 25. Accessibility Section The County Attorney shall have access to persons, relevant records, documents and property pertaining to civil or criminal cases in the performance of the duties of the County Attorney.

Section 26. Facilities Section The County Government shall provide adequate facilities for the efficient functioning of the Office.

Section 27. Funds of the Office Section 27(1)(a) monies that may be allocated by the County Assembly for the purposes of the Office; Section 27(1)(b) such monies or assets as may accrue to the Office in the course of the exercise of its powers or the performance of its functions under the Act; and Section 27(1)(c) all monies from any other source provided, donated or lent to the Office. Section 27(2) The funds of the Office shall be used for administrative expenses of the Office and such other purposes as may be necessary for the discharge of the functions of the Office.

Section 28. Annual report Section 28(1) The County Attorney shall, as soon as practicable after the thirtieth of June in each year, prepare and furnish to the Governor a report of the operations of the Office during the year that ended on thirtieth June. Section 28(2)(a) the financial statements of the Office; Section 28(2)(b) a description of the activities of the Office; and Section 28(2)(c) such other information relating to its functions that the Office may consider necessary. Section 28(3) The County Attorney shall submit to the Clerk of the County Assembly a copy of the report furnished under subsection (1) for tabling before the County Assembly within fifteen days after the day on which the Governor receives the report.

Section 29. 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 for the carrying out or giving effect to this Act.

Section 30. County Assembly legislation Section This Act shall prevail in case of any inconsistency between this Act and legislation enacted by a County Assembly in accordance with Article 191 (3) (b) of the Constitution.

Section 31. Transition Section 31(1)(a) be deemed to be members of staff of the Office in their respective capacities; Section 31(1)(b) retain any rights accrued or accruing to them as such staff or contributors; Section 31(1)(c) be at liberty to continue to contribute to any superannuation scheme to which they were contributors; Section 31(1)(d) be entitled to receive any deferred or extended leave as if they have continued to be such staff of the Office during their service with the county executive; Section 31(1)(e) be entitled to receive any payment, pension or gratuity as if they have continued to be such staff of the Office during their service with the county executive; and Section 31(1)(f) be deemed to be employees of the Office for the purposes of any law under which those rights accrued or were accruing, under which they continue to contribute or by which that entitlement is conferred. Section 31(2) Despite the provisions of subsection (1), a person employed by the county public service board to perform the functions of the County Attorney, County Solicitor or County Legal Counsel at the commencement of this Act shall continue to hold their respective positions in the Off...