Delays in payment as State overwhelmed by court awards
Government drafts a bill to make officials responsible for their actions and decisions
The Office of the Attorney-general has been receiving an average of 1,700 compensation cases annually for the last six years, reports indicate.
This revelation comes as court awards against the government have been on the increase, with information that pending claims lodged at the AG'S office stood at Sh101.3 billion as of May this year.
The compensation consists of awards to victims of torture and for business litigants.
“There is an ongoing exercise to obtain data of pending judgments and awards from State ministries, departments and agencies,” the AG'S office said in response to questions sent to it by the
Some 1,293 compensation cases were filed against the Nairobi AG'S office in 2013 alone.
Some 1,579 cases were filed the following year, 1,667 in 2015, some 1,733 in 2016 and 1,861 in 2017.
When compiling the data this month, the Nairobi office of the AG had received 2,740 cases.
“It is evident that the number of cases keeps increasing year after year. This data is only for the Nairobi office. It excludes new cases being received at our regional offices in Mombasa, Malindi, Kisumu, Kisii, Eldoret, Nakuru, Nyeri, Embu and Meru,” AG Paul Kariuki Kihara's office said.
Besides survivors of the Nyayo House torture, the other major groups suing the government are victims of torture, violations of fundamental rights, unlawful dismissals by members of the Air Force following the 1982 abortive coup, political detainees, persons arrested and tortured on suspicion of being members of the February Eighteen Revolutionary Army in the late 1980s and civil servants retrenched during the Structural Adjustment Programmes period.
Members of the latter group say they were dismissed from public service unfairly.
Other claimants are civil servants who left under the voluntary retirement scheme.
The former public officers say they were duped into signing unfair agreements.
Mwakenya and the 2007/08 post-election violence victims also want to be paid.
The AG'S office says most survivors of the Nyayo House torture chambers have had their compensation settled by the Ministry of Interior and Coordination of National Government.
“Those that remain unpaid are at different stages of processing or appeal where the same have been preferred by the State,” he said.
The revelations of the tens of billions of shillings owed to victims of abuses and business litigants come just weeks after two international tribunals saved Kenya from paying Kinangop Wind Park Ltd and Cortec Mining Kenya (Pty) Ltd a total sum of about Sh250 billion the companies were demanding for lost business.
“The cases we have won demonstrate that the government will go to any length to defend the interests of its citizens,” Mr Kihara said.
Kinangop Wind Park had filed a case against the government at the International Court of Arbitration claiming $154 million (Sh15.8 billion) and a similar amount in damages.
The court dismissed all the company's claims on July 5.
Cortec, on the other hand, had filed a case at the World Bank's International Centre for Settlement of Investment Disputes demanding $2 billion (Sh200 billion).
The issue of court awards and compensations has remained contentious in government circles for decades.
For those awarded compensation, payment often drags for years and some victims die before getting a penny.
In some instances, the interest exceeds the principal award because of the delays in settling the claims.
Former Ford-asili and opposition leader Kenneth Matiba was in 2017 awarded Sh1.5 billion for illegal detention but by the time of his death in April 2018, the government had not settled the claim.
In July, Justice Msagha Mbogholi of the High Court ordered the government to pay 16 Ugandan and Rwanda companies Sh6.3 billion for the goods they lost during the 2007-2008 post-election chaos.
The case was filed by Kampala City Traders Association, Katraco Uganda, Intraspeed Logistics and Mugenga Holdings.
A month earlier, members of the National Assembly's Justice and Legal Affairs Committee said taxpayers risk forking out billions of shillings in compensation claims.
On the question of unethical behaviour by some officials believed to be demanding bribes from victims to accelerate the processing of claims, Mr Kihara said it cannot be ruled out.
However, he added that delays in settling the claims are often caused by any or all of the three factors, namely high turnover of counsel which leaves concluded cases they were handling inactive, the failure by many advocates and litigants to understand the processing legal awards against the government and the place of public finance principles in the entire process.
“Advocates and litigants delay in submitting the requisite documentation to facilitate the processing of legal awards,” he said.
The other problem is the lack of legal counsel/departments in several government ministries, departments and agencies necessitating awards to be acted upon by non-legal officers who lack understanding of their implications.
“The Office of the Attorneygeneral and the Department of Justice have moved to address this gap by seconding counsel — though not enough — to the ministries with high numbers of legal issues and cases,” Mr Kihara said.
To deal with claims from business litigants, the 2018 Government Contract Bill places individual responsibility on officials who commit the State into contracts that end up costing the public.
“This is an important bill that will see government officials made personally liable for entering into contracts that are not well thought-out. It is important that due diligence is undertaken at all times and by all,” the AG said.
Former Kiharu MP and cabinet minister Kenneth Matiba (in wheelchair) after opening an eye and dental hospital in Kenol, Murang’a County, on May 9, 2016. Mr Matiba was detained without trial for almost a year in the early 1990s. He sued the government years later and was awarded Sh1.5 billion in 2017. He had not received anything by the time he died in April 2018.