Lawyers in Kenya are in open revolt after a High Court order temporarily slammed the door on public entities hiring private law firms, a move the profession sees as a bureaucratic blunder that threatens livelihoods and invites administrative paralysis.
- •The order, issued on Monday by a Nakuru High Court, followed a petition filed by seven individuals led by academic Dr. Magare Gikenyi and Busia Senator Okiya Omtatah Okoiti.
- •It suspends the engagement of private advocates by national and county governments pending the hearing of the constitutional challenge.
- •The Law Society of Kenya (LSK) has described the petition and the court’s response as an attack on the legal profession and a threat to a sector that supports public service delivery across the country.
“We forewarn that this action and court order threaten to unsettle the entire economical ecosystem which is anchored in the reliance on competent professionals to support the public service,” said LSK President, Faith Odhiambo.
At the heart of the dispute is whether public entities should be allowed to hire outside legal help when they already employ in-house lawyers. The petitioners argue that outsourcing legal work wastes public money and violates constitutional principles requiring prudent spending and cost-effective procurement.
They want the court to permanently bar government bodies from engaging private law firms whenever state-employed lawyers are available. Their case also seeks to block the Controller of Budget and other public officials from approving funds for external legal services, and to have the matter heard by a larger bench of judges because of its constitutional importance.
Lawyers see the issue differently. They say the use of private advocates is allowed under existing laws governing the offices of the Attorney-General and county attorneys, and that such services are procured through established public procurement processes. They also said that legal fees are regulated and subject to assessment, not arbitrary payment.
More broadly, the legal profession warns that halting private engagements would have consequences far beyond law firms. Legal services are part of a wider procurement system that supports infrastructure projects, debt recovery, land transactions, arbitration, and litigation involving public agencies. Disrupting that system risks slowing government operations and weakening service delivery.
The Case Against Status Quo
On the flip side, the petitioners cite reports by the Auditor-General and the Controller of Budget revealing heavy spending on external legal services by county governments. Nairobi City County alone is said to have spent more than KSh 21 billion on legal fees, accounting for the bulk of county legal expenditure nationwide. Other counties including Machakos, Kisumu, Nakuru, Tana River, and Mandera are reported to have spent hundreds of millions of shillings.
The Auditor General reports that shady legal payments in both the national and county governments have contributed greatly to the list of pending bills. In many cases, there is little justification for some cases being in court, or no clear explanation how these firms were selected.
In Kilifi county, for instance, an audit discovered that there were no court attendance records by private lawyers who had been paid nearly KSh 72 million as legal fees. In other counties, selected private law firms had no express approval from the County Executive Committee.
Following the abandonment of the Adani proposal to develop and operate JKIA, the Kenya Airports Authority (KAA) had to pay more than KSh 200 million to a private law firm for handling multiple court cases tied to the deal. The legal fees, far exceeding the original budget, were approved through direct procurement, with KAA citing continuity, specialized expertise, and the expanding scope of litigation.
One pattern that has been clear in the state audits is that private law firms engaged by both parastatals and county governments have a suspicious streak of unusually high expenses and flimsy documentation of their activities. This points out that some of these private law firms are channels of public fund misappropriation.
According to the petition, these expenses are unnecessary because counties already maintain fully staffed legal departments funded by taxpayers. The continued outsourcing of work sidelines county legal officers, weakens devolution, and renders county legal offices ineffective.
The Case for Status Quo
Lawyers countered that the figures by pointing out that public entities often require specialized expertise, capacity beyond in-house teams, or independent representation in complex disputes. In many cases, internal legal departments lack the numbers or experience to handle large volumes of litigation or high-stakes commercial matters.
The Law Society says it will move quickly to challenge the decision and oppose the petition, framing the fight as one not just about lawyers’ incomes, but about how the Kenyan state accesses professional expertise. With the LSK elections looming in March, a victory over the petition could feature prominently as an item for many candidates.
Meanwhile, an association of county attorneys has also mounted a coordinated criticism of the conservatory orders arguing that the move threatens devolution and paralyzes county governance. They said that the orders were issued without hearing affected parties.
"Counties retain lawful authority to engage external counsel until a competent court rules otherwise. The Nakuru orders are legally unsustainable and interfere with devolution," the attorneys said in a statement.
